Case v. Maxey , 1856 Cal. LEXIS 123 ( 1856 )

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Terry concurred.

The order of the Court below striking out a portion of the answer was proper, as it was no defence to the action.

It is not alleged that the note sued upon was given in payment for a division of the cattle; on the contrary, it appears that it was given for the defendant’s interest in the ranch and money expended in bringing the cattle across the plains.

If the plaintiff has been deceived in the division of the stock, as he alleges, he should file his bill for a discovery and account; but as such division had nothing to do with the consideration of the note sued on, it cannot be set up as a counter claim, or equitable defence to this action.

When this case was here before, this point was not made, and the judgment was reversed on account of the insufficiency of the referee’s report.

Judgment affirmed.